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Browse, Click, Sign, Enforce?
Signing, dating and keeping a record of a paper contract are standard practice ' afterthoughts most of the time. However, that standard practice does not easily translate to online legal agreements ' the agreements that are native to websites, mobile apps and other digital platforms such as'”Terms of Use,” “Terms of Service,” “Privacy Policies” and disclaimers. How are those agreements presented on your client's website? How are those agreements accepted on your client's website? How does your client track who is agreeing to what and when they agreed?
The answers to these questions can make or break the enforceability of even the best-drafted agreements ' a problem that has plagued companies like Zappos.com, Overstock.com and Trans Union. Lawyers who routinely prepare online legal agreements stop short of providing complete and adequate legal services when they deliver these agreements to their clients and collect their fees without advising the client on the ongoing management, tracking and enforceable implementation of those agreements. Lawyers can no longer plead ignorance when it comes to the technical implementation and management of the agreements they provide to client ' it borders on malpractice to do so. If an agreement is not enforceable, why even have one in place at all? This article discusses how lawyers can advise clients how to implement and manage their online legal agreements ' both browsewrap and clickwrap varieties ' to maximize enforceability.
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